Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger
Tennessee Department of Children’s Services Logo
On an August afternoon in 2008, Hickman County, TN resident Robert Andrews was working on a trailer in his yard when two deputy sheriffs pulled up in front of his house, along with three caseworkers from the Tennessee Department of Children’s Services. They approached Mr. Andrews and asked permission to go inside his home. They did not have any kind of warrant or court order, so Andrews told them they did not have permission to enter his home.
Despite his refusal, all three caseworkers and one of the deputies entered the home and searched the place. They also took each of his four children aside for interviews out of his earshot. Then the officials left. Neither Andrews nor his wife, Patti, was ever accused of a crime in connection with the visit. They were not afforded the opportunity to contact a lawyer or have a lawyer present for the interrogations of the children. At no time before or since that incident was any member of the Andrews family ever accused of any crime in connection with that visit.
In March 2002, a police officer in Cuyahoga County, Ohio kicked in Nancy Kovacic’s door, allowing caseworkers to enter her home and seize her two children. The children were placed in foster care, where they stayed 10 months. There were no criminal charges of any kind against Nancy Kovacic. Her attorney, Jay Crook, told reporters, “Caseworkers can’t just make a judgment call and say, ‘Well, I don’t like this, and with the power of the state, I’m taking these children,’ “
The children are now grown and were part of the lawsuit. They report being abused while in foster care. They have been in therapy for several years due to the trauma of being removed from their mother. Mr. Crook added, “Without that neutral arbiter, that magistrate, that judge; even over the phone, you have lost all your due process safeguards.”
Those events at the Andrews home led to a lawsuit against the caseworkers. There was also a similar lawsuit from another family in Ohio. Both cases ended up in front of the Sixth Circuit. The U.S. Court of Appeals for the Sixth Circuit used the cases to specify that caseworkers, like police, are agents of the State, and therefore controlled by the Fourth Amendment to the Constitution. This is the first time a Federal appeals court has specified that caseworkers from children’s services departments must abide by the Constitution.
More over the flip, including the full text of both Sixth Circuit decisions.
This issue has bothered me for many years. My former daughter in law was a caseworker with the state children’s services, and she often bragged on how many children she had removed from homes with no probable cause other than some vague complaint and in her opinion the kids were not being cared for properly. That she, of all people, would be the judge of who is a lousy parent is another story for another time. There are a number of really good reasons she became my ex-daughter in law.
But, back to the story at hand. Before the Sixth Circuit ruling, Tennessee caseworkers could decide, sua sponte, to remove a child from a home; however, they were required to petition a court within three days (72 hours) for a judicial hearing on whether the removal of the children was justified. The Sixth Circuit decision makes it abundantly clear that policy is unconstitutional.
Tenn. DCS attorney Douglas Diamond
The Tennessee DCS’s lead counsel, Douglas Diamond, says it is his opinion that caseworkers can no longer remove a child from a unless there is a full formal court hearing. He did say there may be “exigent circumstances” which are very narrowly defined as an immediate, identifiable risk of harm that is “serious, immediate, physical or specific.” Under Mr. Diamond’s definition, that excludes even a complaint of sexual or physical abuse, for example by medical personnel, even if there are observable injuries visible on a child.
Davidson Co. Tenn. Juvenile Court Judge Sophia Crawford
Within hours of the Federal court ruling, Tennessee juvenile court judges had a solution to the problem in place. Davidson County (Nashville) Juvenile Court Judge Sophia Crawford said in an interview with Nashville media that she and other juvenile court judges are willing to issue temporary, emergency ex parte orders. Judge Crawford said that could be done over the phone. The emergency order could even be done by email or text message, according to Tennessee juvenile court judges if a caseworkers attested to a child being in danger. In a sweeping move by Juvenile judges across the state, the judges provided DCS officials personal cellphone numbers. They also designated on-call staff members during overnight.
DCS officials declined the offer of the state’s juvenile court judges, apparently on the instructions of DCS lead counsel Douglas Diamond.
Judge Crawford is quoted as saying,
“Myself and magistrates are available on a 24-hour basis to address any problems or questions that arise as the department works to protect children. We’ve gone over and above by reminding them (DCS) we are available on a 24-hour basis for any issue that requires a court order of protection of children. As a juvenile court judge, I feel comfortable that we can do what we need to, but I don’t have any control over the policies and procedures of the department.”
One local attorney who is often appointed as a guardian ad litem in DCS cases, Rob Huddleston, says the Department is being overly cautious. Huddleston says the new rules are already affecting the safety of Tennessee children. He pointed out an instance from just a few days ago where a baby was born addicted to drugs. Previously, it would have been possible to declare a medical emergency and seize the child before it went home. By happy accident, because of a dispute between the parents, Rob Huddleston had already been appointed by the court as guardian ad litem. He was able to get an emergency order from a local judge without DCS intervention. The emergency order will give the court time to schedule a full hearing with the family, DCS and Huddleston as the child’s legal representative. Huddleston was quoted as saying,
“I think they are being overly cautious. I do not agree with how they are reading the Sixth Circuit opinion. I think they are trying to protect caseworkers from liability instead of protecting children. My sense is this policy is going to be short-lived until something tragic happens.”
None of the other states subject to the Sixth Circuit’s jurisdiction have gone as far as Tennessee in limiting DCS caseworkers ability to remove children under dependency and neglect laws.
Since the ruling, Ohio has implemented safeguards similar to the ones turned down by the Tennessee DCS. The Cuyahoga County prosecutor’s office explained that caseworkers can seek emergency temporary orders from a judge. That can be done over the phone or by email. Caseworkers are required to appear in court on the next business day for an emergency in-person hearing. At that hearing the parent(s) have the opportunity to present their side to the judge.
The other states under the 6th Circuit jurisdiction, Kentucky and Michigan, have implemented rules similar to those in Ohio. Tennessee remains the holdout. And as Mr. Huddleston observed, it appears to this interested observer that DCS counsel Douglas Diamond may be more concerned with protecting caseworkers than the kids.
I don’t want to go into much detail here, but I actually have some skin in this game. One of our kids is adopted. A social worker from children’s services had been working with a family with a new baby. While making a home visit, the social worker offered to change the diaper when she noticed the child’s bottom was somewhat deformed. Grabbing the seven-month-old and the mother, they drove to the emergency room. The ER doctor told the social worker and mother there was a mass in there that needed immediate attention and referred them to a major medical center about 90 miles away. The social worker drove her own car, and from all accounts broke every speed limit on the trip because the baby started having seizures in the car. Upon examination at the medical center, the doctors discovered a very large tumor which needed immediate surgery. By that time the father had arrived. The parents said they did not want the surgery, they were going to take the baby home. The doctors and social worker inquired if the objection was due to religious reasons. They said no, they didn’t want to have to spend time away from home. The medical staff told them the baby was not going anywhere and declared a medical emergency. Security arrived and made sure the baby was escorted to surgery immediately. After the surgery, the medical staff informed the parents the tumor was malignant, and they had not been able to remove all of it. A large chunk of the cancerous tumor remained. Because of this, chemotherapy must be started immediately. Again the parents objected, wanting to take the baby home. Again, security intervened, and the state took custody. The parents went home and did not return. Five months later, we found out about the baby who had been abandoned at the Children’s Cancer Clinic. My wife was the Head Nurse of the oncology (cancer) unit at one of the largest hospitals in the state. She was more than qualified to take care of a child with cancer. We got her as a foster child. The prognosis was grim, with no chance of surviving longer than five to eighteen months. Two years later we adopted her. She is now a mature adult, tough, strong-minded and opinionated.
At the time the social worker first discovered the lump, no one knew the tumor had grown so large it was cutting off the child’s ability to eliminate body waste, and circulation was being cut off. She literally had only hours to live at the time of the emergency surgery. Under the new Tennessee DCS rules, she would have died. Obviously, a balance must be struck between the arbitrary and capricious whims of individual caseworkers and protecting safety and welfare of children. And all the while, protecting the Constitutional rights of everyone concerned. It is a balancing act.
The two Sixth Circuit decisions are at the links below:
Andrews, et al. v. Hickman County, Tenn., et al. (Decided and Filed: December 3, 2012 )
Kovacic et al. v. Cuyahoga County. et al. (Decided and Filed: July 31, 2013)